Nathaniel Adams v. Office of Campaign and Political Finance (SPR 20232754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2023 SPR23/2754 Jason A. Tait Records Access Officer Office of Campaign and Political Finance One Ashburton Place, Room 411 Boston, MA 02108 Dear Mr. Tait: I have received the petition of Nathaniel Adams appealing the response of the Office of Campaign and Political Finance (Office/OCPF) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2023, Mr. Adams requested: [T]he following records related to a completed OCPF investigation, CPF-22-35 (The Committee to Elect [a named individual], or the “Committee”), which resulted in the issuance of [a specified] Public Resolution Letter: Any written records (such as internal memoranda or notes from a call between OCPF and the Committee) that identify the representative or agent of the Committee who erroneously advised the donors regarding the contributions that were the subject of the complaint. Previous Appeal This request was the subject of a previous appeal. See SPR23/2303 Determination of the Supervisor of Records (October 11, 2023). In my October 11th determination, I ordered the Office to clarify its claims under Exemption (f) for withholding responsive records. Subsequently, the Office responded on October 25, 2023, reiterating its claims under Exemption (f). Unsatisfied with the Office’s response, Mr. Adams appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jason A. Tait SPR23/2754 Page 2 November 29, 2023 form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s October 25th Response In its October 25, 2023 response, the Office identifies the following responsive record: [O]ne Portable Document Format (“PDF”) File that contains only the investigating attorney’s notes relative to the referenced review. The attorney’s notes were compiled during the course of an investigation that was opened pursuant to M.G.L. c. 55, § 3. The Office cites Exemption (f) of the Public Records Law for withholding the responsive record. See G. L. c. 4, § 7(26)(f). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v.

Jason A. Tait SPR23/2754 Page 3 November 29, 2023 Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In it October 25th response, the Office argues the following under Exemption (f): This record was created exclusively as part of OCPF’s investigation into alleged violations of M.G.L. c. 55, and would not have been created but for the need to satisfy the Office’s statutory obligation to review the Committee’s activity. . . . [T]he notes reflect the attorney’s thought processes, recommendations with respect to what steps to take in the investigation, and the identities of individuals who voluntarily spoke with the attorney during the course of the investigation. The manner and order in which OCPF conducted its interviews, why OCPF conducted the interviews in that way or asked particular questions, the identity of witnesses who spoke with OCPF, and negotiation techniques would all be made clear by the disclosure of the information contained within the attorney’s notes. . . . Based on the facts learned during the investigation, the various individuals who may have been responsible for the erroneous statement could only have been identified by particular witnesses who were present at the time the statement at issue was made; therefore, revealing the names of the people who may have made the statement would inevitably also reveal the identities of the witnesses who cooperated with OCPF, since only a few people could have identified the potential speakers. . . . [A]ny facts that may be responsive are inextricably linked and interspersed with the attorney’s investigative techniques and processes, legal impressions, opinion work product, and the identity of cooperating witnesses, which make redaction impracticable: nearly the entire document would be blacked out to avoid releasing information that would invariably disclose the identity of the cooperating witnesses or OCPF’s investigative process.

Jason A. Tait SPR23/2754 Page 4 November 29, 2023 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (f) claim made by the Office to withhold responsive records, the Office must provide this office with an un-redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Adams